Is it compulsory to first file case against relatives before wakf board, to claim maintenance under ‘Muslim women (protection of rights on divorce) 1986’?
The maintenance case came at supreme court when an appeal was filed by the Tamil Nadu Wakf Board, against the order of Madras High court which declined to quash the proceeding, pending in the Judicial Magistrate court, Tiruchendur, in which a muslim lady, Syed Fatima Nachi, was claiming maintenance from wakf board.
Facts in Brief
- A Muslim divorced lady filed a petition against wakf board, under Section 4(2) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 seeking maintenance at the rate of Rs. 750/- per mensem.
- The petition was founded on the facts that she was married to one Syed Ahmed Moulana on 10.6.1980 in accordance with the tenets of Muslim Law and out of the wedlock, she had procreated female twins on 6.4.1981. Her husband divorced her on 12.6.1986 and since then she has not remarried.
- Claiming that the respondent had no income or means to maintain herself, as well as her minor female children, none of them owning any property, she was, thus, unable to maintain herself and required intervention of the Court in providing her a suitable sum for maintenance.
- She claimed that she had earlier been leading a good life as a married woman but after divorce, was in dire straits and in suffering.
- She claimed that under the Mohammedan Law, a Muslim woman, in such circumstances, can get maintenance from her prospective heirs. According to her, a host of relatives as given in the Act as well as under the Mohammedan Law are responsible to provide maintenance to her and if those are unable to do so, the claim of maintenance must be met by the Wakf Board.
- it was also maintained that neither her prospective heirs not her parents were in a position to provide maintenance to her and thus there lay a bounden duty on the Wakf Board to that effect; hence claim of Rs. 750/- per mensem.
Analysis by the Court
The Parliament enacted the act Muslim Women (Protection of Rights on Divorce) Act, 1986 to undo the effect of a Constitution Bench decision of supreme Court in Mohd. Ahmad Khan v. Shah bano Begum (1985 2 SCC 556) because the said decision was strongly opposed to by a sizeable section of the Muslim Community.
The Act as Preamble suggests, came to protect the rights of Muslim women who have been divorced by, or obtained divorce from, their husbands. The brief text of the Act embodies the all-important Section 4 whereunder orders can be made for payment of maintenance.
Section 4 of the act
A bare reading of the provision shows that
- a divorced woman is entitled to claim a reasonable and fair maintenance from such of her relatives as would be entitled to inherit her property on her death, according to Muslim Law,
- provided she has not re-married and is not able to maintain herself.
- Such maintenance, however, shall be payable by such relatives in proportion to the share which they would inherit in her property and at such periods as the Magistrate may specify in his order.
- If the divorced woman has children, the first proviso to sub-section (1) of Section 4 mandates that the liability to maintain her firstly lies on them. In the event of her children being unable to maintain her, the liability shifts to her parents under the same proviso.
- The liability of the relatives other than the children and the parents, follows, sequentially, subject to the conditions as embodied in the proviso. The liability of the relatives does not depend on the contingency that the divorced woman has property which they would inherit. It looks incongruous though that a divorced woman having property would yet be unable to maintain herself.
- if the divorced woman has no relatives as mentioned in sub-section (1) or relatives who have not enough means to pay her maintenance, the State Wakf Board functioning in the area, in which the divorced woman in resident, has been foisted with the liability to pay suitable maintenance to her, on the Magistrate’s order and/or direction.
The main contention of the wakf board
The board vehemently argued that unless the remedy against relative does not exhaust, wakf board cannot be made to face the litigation. But the court did not agree with the contention as such line of thinking, if would have accepted, created multiplicity of proceedings. Because,
(1) the proceedings shall in the first instance be initiated against the children of the divorced woman;
(2) if the children are unable to pay maintenance then the second proceedings shall be initiated against the parents of the divorced woman;
(3) if the parents or any one of them is unable to pay the respective share of maintenance then fresh proceedings be started against the relatives;
(4) in case the relatives are unable to meet the claim of maintenance, fresh proceedings be initiated against “other relatives”; and
(5) finally, when no relatives or any one of them unable to pay maintenance then another set of proceedings be initiated against the State Wakf Board; all backed by the orders of the Magistrate.
And since the State Wakf Board comes last, it is maintained that its turn instantly has not yet arrived because no proceedings have been initiated against the relatives.
If it would have been allowed, it would have a devastating effect on the purpose for which the provision was enacted.
The court said,
“The Drafter’s pattern in sub-dividing the provision into sub-section (1) and (2) evidently was not to cause any split in the legislative theme because the provision, as it appears to us, is an integrated whole. One step is dependent on another.
It is futile for to divorced woman seeking succour to run after relatives, be it her children, parents, relatives or other relatives, who are not possessed of means to offer her maintenance and in fighting litigations in succession against them, dragging them to courts of law in order to obtain negative orders justificatory of the last resort of moving against the State Wakf Board.
In our considered view, she would instead be entitled to plead and prove such relevant facts in one proceeding, as to the inability of her relations aforementioned, maintaining her and directing her claim against the State Wakf Board in the first instance. It is, however, open for the State Wakf Board to controvert that the relations mentioned in the provisions, or some, of them, have the means to pay maintenance to her.
In that event the Magistrate would perfectly be justified in adding those relatives as parties to the litigation in order to determine as towards whom shall he direct his orders for payment of maintenance. In one and the same proceeding, one or more orders conceivably can be passed in favour of the divorced woman subject of course to her not re-marrying and remaining unable to maintain herself. We hold accordingly.”
Appreciation and remuneration for the lawyer
After deciding the matter, the court further noted that the lady, in turn, did not engage a counsel but despatched a letter to this Court, praying that some counsel be arranged by the Court to represent her and that she be remitted the said sum of Rs. 10,000/-.
In such a situation, the court had appointed Mr. Uday Umesh Lalit, learned counsel as an amicus curiae to assist the court in the matter on her behalf. The court after appreciating his assistance to the court in deciding the matter, said that the counsel deserves a remuneration of Rs. 3,000/-. And directed the Registry accordingly, to make payment to Mr. Lalit out of the sum deposited.
The balance sum of Rs. 7,000/- was ordered to be remitted to the respondent (lady) as succour, to tide over her financial difficulties.
The Secretary, Tamil Nadu Wakf vs Syed Fatima Nachi, 1996